The court in which such petition is filed, or the judge thereof in vacation or a referee appointed by the court for this purpose shall review the circumstances under which the individual was declared incompetent and shall take evidence to determine that the circumstances warrant continuation of the incompetent status of the individual.
If, as a result of such review it is determined that the incompetent status should be continued, a further hearing shall be scheduled.
A copy of such petition shall be served upon such incompetent person, together with a notice, in writing, designating the date and time when the court, or the judge thereof in vacation, will hear the matters arising upon such petition. Such notice shall be served not less than fifteen days prior to the date of such hearing.
After the notice required by this article to be served shall have been given, as herein provided, the court, or the judge thereof in vacation or referee appointed for this purpose shall proceed to hear and consider the petition and the evidence offered in support of and against the same. For every such incompetent person who is not represented by counsel the court shall appoint competent legal counsel who shall represent the rights and interests of such incompetent person who shall have the right, but shall not be required to be present at such hearings in person, and shall have the opportunity to present evidence in his own behalf and cross-examine witnesses. A transcript of all testimony at such hearing shall be made a part of the record filed with the clerk and shall be made available to the incompetent person or his counsel.
However, prior to such hearing the court shall order a complete medical-social evaluation by one licensed physician and one licensed psychologist or by two licensed physicians, at least one of whom shall be qualified in the field of psychiatry, neurology or genetics. Such examiners shall be present at the hearing and may be examined and cross-examined.
Upon consideration of the full record, the court, the judge thereof in vacation or the referee may find:
(1) That sterilization is unwarranted and the proceedings shall be dismissed;
(2) That the individual is mentally impaired and that such defect is of a genetic nature that is likely to be passed on to any children; or
(3) That the individual is mentally impaired to such a degree as to be unable to care for a child and that the individual is unlikely to recover from such mental impairment.
If the finding is made as enumerated in (2) or (3) above, and it is further determined that no alternative method of birth control is feasible, the court or the judge thereof in vacation may order that medically appropriate sterilization procedures shall be performed, and for a female, that such procedures be performed in a medical facility licensed by the state board of health. In no case shall such procedures be carried out until sixty days have elapsed from the date of such order.
Note: WV Code updated with legislation passed through the 2012 1st Special Session